Inakambi Singorom v John Kalaut [1985] PNGLR 238

• Jurisdiction: Papua New Guinea
• Judge: Los J:
• Judgment Date: 09 August 1985
• Citation: [1985] PNGLR 238
• Docket Number: Supreme Court Reservation No 1 of 1985
• Court: Supreme Court
• Year: 1985
• Judgement Number: SC299

Full Title: Supreme Court Reservation No 1 of 1985; Inakambi Singorom v John Kalaut [1985] PNGLR 238

Supreme Court: Kidu CJ, Woods J, Los J

Judgment Delivered: 9 August 1985

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT RESERVATION NO 1 OF 1985

INAKAMBI SINGOROM

V

JOHN KALAUT

Waigani

Kidu CJ Woods Los JJ

30 June 1985

9 August 1985

INFANTS AND CHILDREN — Crimes and offences by children — Sentence — Minimum penalty provision — Court exercising powers of Children's Court — Exemption from applying minimum penalties legislation — Child Welfare Act (Ch No 276), s 32 (6).

CRIMINAL LAW — Sentence — Minimum penalty provision — Offender between sixteen and twenty-one years — Court exercising powers of Children's Court — Exemption from applying minimum penalties legislation — Child Welfare Act (Ch No 276), s 32 (6).

Held

Where a court is not a Children's Court duly constituted under the establishment provisions of the Child Welfare Act (Ch No 276) but is a court authorised under s 32 of the Act to exercise the powers of a Children's Court, then that court is included within the term "Children's Court" in s 32 (6) of the Act and is not bound by a minimum penalty prescribed for an offence dealt with by it and may disregard the provisions of the minimum penalties legislation in imposing penalties.

The State v Rapi [1985] PNGLR 23, approved.

Worofang v Wallace [1984] PNGLR 144, disapproved.

PLAR No 1 of 1980 [1980] PNGLR 326, considered and applied.

Cases Cited

House v The King (1936) 55 CLR 499.

Laho Kerekere v Robin Miria [1983] PNGLR 277.

PLAR No 1 of 1980 [1980] PNGLR 326.

SCR No 6 of 1984; Re Provocation [1985] PNGLR 31.

State, The v Danny Sunu [1983] PNGLR 396.

State, The v Rapi [1985] PNGLR 23.

Tuk, Henry v Gori [1983] PNGLR 420.

Worofang v Wallace [1984] PNGLR 144.

Reference

This was a reference to the Supreme Court of a question reserved by a judge of the National Court on the question of the applicability of the Child Welfare Act (Ch No 276), s 32, to defendants aged between sixteen and twenty-one years and charged with offences to which the minimum penalties legislation applied.

Counsel

S Lupalrea, for the affirmative.

G Salika, for the negative.

Cur adv vult

9 August 1985

KIDU CJ: The court is asked to answer the following question:

"Where a court is not a Children's Court duly constituted under the establishment provisions of the Child Welfare Act (Ch No 276) but is a court authorised under s 32 of the said Act to exercise the powers of a Children's Court, then, is such court included within the term 'Children's Court' referred to in s 32 (6) of the said Act?"

The Child Welfare Act (Ch No 276), s 32 (6) (the Act) was enacted in 1983 (the year minimum penalties were introduced in the criminal justice system) to ensure that these minimum penalties did not apply to children dealt with in the Children's Courts. Unfortunately the Legislature did not specifically include courts exercising powers of the Children's Courts pursuant to s 32 (4) and (5) of the Act in the enactment and consequently two judges of the National Court have given opposing views; one saying that courts exercising Children's Courts' powers are not exempted from imposing minimum penalties and the other saying such courts were indeed included in the amendment. The former view was expressed by Bredmeyer J in Worofang v Wallace [1984] PNGLR 144 and the latter view was expressed by Pratt J in The State v Rapi [1985] PNGLR 23.

The relevant provisions of s 32 are subss (2), (4), (5) and (6):

" (2) Where a Children's Court deals summarily with an offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a child, the Court may:

(a) impose a penalty of:

(i) a fine not exceeding K100.00; or

(ii) imprisonment for a term not exceeding six months, and,

in addition to or instead of any penalty imposed under sub-paragraph (i) or (ii) make an order in respect of the child as if the child had been declared to be an incorrigible or uncontrollable child under this Act; or

(b) without proceeding to conviction:

(i) if the child is under the age of 14 years, and it appears to the Court that punishment inflicted by a guardian of the child, or some other person, would be the most suitable penalty in the circumstances — adjourn the hearing for that purpose; or

(ii) order a guardian or the guardians of the child to give security for the good behaviour of the child until the child attains the age of 16 years, or during such shorter period as the Court thinks sufficient; or

(iii) adjourn the hearing for such period as the Court thinks proper to enable the child:

(a) to do such acts or things for the purpose of remedying or diminishing any damage done or injury or loss caused by the child; or

(b) to undergo such discipline or instruction for the purpose of his reform or rehabilitation,

as the Court, on the recommendation of a welfare officer, sees fit to order, and on being satisfied that suitable punishment has been inflicted, or the security has been given or the acts or things have been performed, or the discipline or instruction has been undergone, as the case may be, dismiss the charge and give a certificate or dismissal.

...

(4) Where a court other than a Children's Court deals with an offence (other than homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a child, that court may exercise the powers of a Children's Court under subsection (2), and an order made in the exercise of those powers has effect as if it were an order of a Children's Court.

(5) Where a court other than a Children's Court deals with an offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a person over the age of 16 years but under the age of 21 years, the court may, where it thinks it for any reason desirable —

(a) treat the person as a child for the purposes of this Act; and

(b) exercise in relation to him, the powers of a Children's Court under subsection (2) and an order made in the exercise of those powers has effect as if it were an order of the Children's Court.

(6) A Children's Court is not bound by a minimum penalty prescribed for an offence dealt with by it and may disregard the minimum penalty prescribed in imposing a penalty."

Bredmeyer J's view (at 146) is as follows:

"... However, the offence under s 395 (1) is a minimum penalty offence and I consider that s 35 (6) of the Child Welfare Act means that when the District Court deals with a minimum penalty offence and the defendant is aged sixteen to twenty-one, it has no alternative but to impose the minimum penalty. That is so because of the application of the expressio unius personae vel rei, est exclusio alterius rule (the express mention of one person or thing is the exclusion of another). The express mention in subs (6) of a Children's Court and the failure to mention other courts referred to in subs (5) means that these other courts are bound to apply the minimum penalties to youths aged sixteen to twenty-one. I consider that when the District Court (or National Court) is dealing with an offender aged sixteen to twenty-one and the offence is a minimum penalty and, it is required to impose the minimum penalty subject to s 138 of the District Courts Act".

The opposite view expressed by Pratt J (at 27):

"... Where, however, the legislative draftsman refers to a Children's Court in subs (6) there is no need to refer to courts other than a Children's Court because the draftsman is referring to the court's power of sentencing, and both a Children's Court and other courts have the same powers under subs (2). Consequently, if the additional power in subs (6) flows through to the Children's Court exercising its powers under subs (2), that being the only source of its original powers, then ergo it follows that such a similar power may be exercised by any court other than a Children's Court which is exercising the power of a Children's Court under subs (2). In short, whereas the very content of subss (4) and (5) dictate the necessity to distinguish between Children's Courts and other courts, such necessity does not arise in subs (6). It would be tautologous.

His Honour [Bredmeyer J] relies entirely on the application of the maxim of legal interpretation expressio unius. I have always followed the advice that such rule though a valuable servant can be a dangerous master: per Lopes LJ in Colquhoun v Brooks (1888) 21 QBD 52 at 65. In Dean v Wiesengrund [1955] 2 QB 120 at 137 the Court of Appeal acknowledged the danger and in fact rejected the doctrine in the case before them. I have found much greater assistance in Lord Wensleydale's golden rule that the...